Citation Nr: 0510035
Decision Date: 04/06/05 Archive Date: 04/15/05
DOCKET NO. 00-22 792 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
What evaluation is warranted for post-traumatic stress
disorder from May 31, 2000?
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The veteran served on active duty from February 1968 to
February 1971, and from May 1971 to December 1971. He also
had National Guard service.
This appeal came before the Board of Veterans' Appeals
(Board) from rating decisions of the Montgomery, Alabama
Regional Office (RO) of the Department of Veterans Affairs
(VA). The RO received the veteran's claim of entitlement to
service connection for PTSD on May 31, 2000. In an August
2000 rating decision, the RO granted service connection for
PTSD, and assigned a disability rating of 10 percent. The
veteran appealed.
In August 2001, a decision review officer awarded a 30
percent rating effective from May 31, 2000. The veteran
continued to appeal.
After attempting to conduct its own development under the
provisions of 38 C.F.R. § 19.9(a)(2) (2002), the Board in
September 2003 remanded the case for further development of
relevant evidence.
In a November 2004 rating decision, the VA Appeals Management
Center (AMC) assigned a staged 50 percent rating effective
from April 24, 2004. The appeal currently before the Board,
then, is for a rating in excess of 30 percent from May 31,
2000, and in excess of 50 percent from April 24, 2004.
The veteran previously had an appeal pending before the Board
of entitlement to service connection for bilateral hearing
loss. In the November 2004 rating decision, the AMC granted
service connection for bilateral hearing loss. That claim is
resolved, and is no longer at issue before the Board.
On appeal the veteran has raised the issue of entitlement to
service connection for diabetes mellitus. This issue,
however, is not currently developed or certified for
appellate review. Accordingly, it is referred to the RO for
appropriate action.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. Since May 31, 2000, PTSD has been manifested by
considerable sleep disturbance, nightmares, flashbacks, and
considerable irritability and emotional withdrawal, producing
difficulty in establishing and maintaining effective
relationships.
3. At no time since May 31, 2000, has PTSD been shown to
produce such deficiencies in judgment, thinking, or mood as
to cause occupational and social impairment with deficiencies
in most areas due to such symptoms as suicidal ideation,
obsessional rituals, or near continuous panic or depression.
CONCLUSION OF LAW
From May 31, 2000, the criteria for a 50 percent evaluation
for PTSD, but not greater, have been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159,
4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veteran's Claims Assistance Act (VCAA), and its
implementing regulations, address VA's duties to notify a
claimant of information and evidence necessary to
substantiate a claim for VA benefits, and to assist a
claimant in obtaining such evidence. See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2004); 38 C.F.R. § 3.102, 3.156, 3.159, 3.326 (2004). VA is
not required to provide assistance to a claimant, however, if
there is no reasonable possibility that such assistance would
aid in substantiating the claim. 38 U.S.C.A. § 5103A.
First, VA has a duty to provide an appropriate claim form,
instructions for completing it, and notice of information
necessary to complete the claim if it is incomplete. 38
U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case,
there is no issue as to providing an appropriate application
form or completeness of the application.
Second, VA has a duty to notify the veteran of any
information and evidence needed to substantiate and complete
a claim, notice of what part of that evidence is to be
provided by the claimant, and notice of what part VA will
attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). In an October 2000 statement of the case
(SOC), in supplemental statements of the case (SSOCs) issued
in October 2000, August 2001, and January 2005; and in
letters issued in October 2002 and April 2004 VA notified the
veteran regarding these matters as they apply to his claim
for a higher rating for PTSD.
Third, VA has a duty to assist claimants to obtain evidence
needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159. In this case, the veteran's service
department medical records are on file, and VA treatment
records have been associated with the claims files. The
veteran has not received private treatment for PTSD. The
claimant has had VA mental health examinations, most recently
in April 2004. He had a hearing at the RO in April 2001
before a decision review officer, and a travel board hearing
at the RO in February 2002 before the undersigned Veterans
Law Judge. VA communications with the veteran have
specifically asked him to advise VA if there were any other
information or evidence he considered relevant to his claims,
so that VA could help him by getting that evidence. (See,
e.g., the April 2004 letter.) In an October 2000 statement
of the case (SOC), supplemental statements of the case
(SSOCs) issued in October 2000, August 2001, and January
2005, letters issued in October 2002 and April 2004, a
September 2003 Board remand, and a November 2004 rating
decision, VA advised the veteran what evidence VA had
requested, and what evidence VA had received. In an April
2004 letter, the AMC asked the veteran to submit all evidence
in his possession. Therefore, the duty to notify the
appellant of any inability to obtain records does not arise
in this case. Id. Thus, VA's duty to assist has been
fulfilled.
Fourth, the appellant was not prejudiced by VA's issuance of
correspondence fulfilling some of the notice requirements of
the VCAA letter after the initial adverse rating decision of
August 2000. The United States Court of Appeal for Veterans
Claims (Court) has held that a claimant is entitled to VCAA
notice prior to initial adjudication of the claim. Pelegrini
v. Principi, 18 Vet. App. 112, 120 (2004). The Court
explained in Pelegrini, however, that failure of an agency of
original jurisdiction (AOJ) (in this case, the RO) to give a
claimant the notices required under the VCAA prior to an
initial unfavorable adjudication of the claim does not
require the remedy of voiding the AOJ action. Rather, it is
sufficient remedy for the Board to remand the case to the AOJ
to provide the required notice, and for VA to follow proper
processes in subsequent actions. Id.
In this case, the Board remanded the case in September 2003.
VA provided the required notice in the 2000 to 2005 actions
and correspondence referenced above. The lack of full notice
prior to the initial decision is corrected.
Finally, to the extent that VA may have failed to fulfill any
duty to notify and assist the veteran, the Board finds that
error to be harmless. Of course, an error is not harmless
when it "reasonably affect(s) the outcome of the case."
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998). In this case, however, because there is not a
scintilla of evidence that any failure on the part of VA to
further comply with the VCAA reasonably affects the outcome
of this case, the Board finds that any such failure is
harmless. While perfection is an aspiration, the failure to
achieve it in the administrative process, as elsewhere in
life, does not, absent injury, require a repeat performance.
Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir.
1985).
Rating for PTSD
Disability ratings are based upon the average impairment of
earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2004).
Separate rating codes identify the various disabilities.
38 C.F.R. Part 4. An evaluation of the level of disability
present includes consideration of the veteran's ability to
engage in ordinary activities, including employment, and the
effect of symptoms on the functional abilities. 38 C.F.R.
§ 4.10. Where there is a question as to which of two ratings
shall be applied, the higher rating will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. 38 C.F.R. § 4.7. When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, VA shall give the benefit of the doubt to the
claimant. 38 U.S.C.A. § 5107.
In determining the current level of impairment, the
disability must be considered in the context of the whole
recorded history, including service medical records.
38 C.F.R. § 4.2. The Court had held that, at the time of an
initial rating, separate ratings can be assigned for separate
periods of time based on the facts found, a practice known as
"staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126
(1999).
In this case, the veteran appealed the initial 10 percent
disability rating that the RO assigned. The RO later
increased the initial disability rating to 30 percent. More
recently, the AMC assigned a staged increase in the rating,
retaining a 30 percent rating effective from May 31, 2000,
and increasing the rating to 50 percent effective from April
24, 2004. The Board will consider the evidence, and will
consider what rating or ratings are warranted, over the
entire period since the effective date of the grant of
service connection.
Under the rating schedule, PTSD is evaluated under 38 C.F.R.
§ 4.130, Diagnostic Code 9411, under a General Rating Formula
for Mental Disorders, as follows:
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective relationships
............................................. 70
percent
Occupational and social impairment with
reduced reliability and productivity due
to such symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term memory
(e.g., retention of only highly learned
material, forgetting to complete tasks);
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; difficulty in establishing and
maintaining effective work and social
relationships ........................... 50 percent
Occupational and social impairment with
occasional decrease in work efficiency
and intermittent periods of inability to
perform occupational tasks (although
generally functioning satisfactorily,
with routine behavior, self-care, and
conversation normal), due to such
symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment,
mild memory loss (such as forgetting
names, directions, recent events)
..................................................... 30 percent
38 C.F.R. § 4.130.
The veteran began outpatient mental health treatment at a VA
facility in April 2000. He reported depression, sleep
disturbances, nightmares, temper outbursts, emotional
emptiness, and social withdrawal. He reported daily use of
alcohol, consuming about a pint every two days. He reported
that he had worked after service at an Army depot for
thirteen or fourteen years, and had stopped working because
of a shoulder injury. He reported having had difficulties
with supervisors at work. He reported a history of three
marriages, trouble getting along with his current wife, and
strained relationships with his grown children. He related
incidents in his first and second marriages in which he had
been violent toward his wives. He stated that he did not
show any affection toward his current wife, and that he
avoided her. He indicated that he had been excessively rigid
and harsh toward his children as they were growing up, and
that they now limited their interaction with him. He
reported that he could not tolerate being around crowds, and
that he would not eat in a restaurant.
Mental status examination was significant for signs of
anxiousness and irritability. The veteran was hypervigilant,
with a depressed mood. He reported frequent intense thoughts
about Vietnam. His insight and judgment were opined to be
poor, however, there was no evidence of any harmful ideation
or psychosis. The practitioners diagnosed PTSD and alcohol
abuse.
A VA psychiatrist prescribed medication to address PTSD
symptoms in July 2000. That psychiatrist assigned a global
assessment of functioning (GAF) score of 40. The claims file
contains records of ongoing outpatient treatment in 2000
through 2004.
At a July 2000 VA psychiatric examination the veteran
described ongoing PTSD symptoms, including irritability,
difficulty getting along with others, poor sleep,
hypervigilence and a startle response. He described guilt
feelings about Vietnam, and a general sense of anxiety and
hypervigilence. Mental status examination reveled coherent
thought processes, and a moderately anxious affect, without
suicidal or homicidal ideas. There were no flight of ideas,
or loosening of associations. Proverb interpretation was
intact. The examiner diagnosed alcohol dependence and
generalized anxiety disorder with PTSD features. The
examiner assigned a GAF score of 56.
In his April 2001 hearing before a decision review officer at
the RO, the veteran reported that he was on medication for
PTSD, but nonetheless continued to have nightmares and
trouble sleeping. He stated that he slept only two or three
hours at night. He indicated that he had trouble getting
along with people, including his wife and other family
members. He related that his interaction with family members
was characterized by lack of affection, irritability, a quick
temper, and threats of violence. He stated that he minimized
or avoided being in public places like stores or restaurants.
On VA examination in July 2001, the veteran stated that he
avoided showing emotion, and avoided public places. He
reported poor sleep, hypervigilence, and an exaggerated
startle response. He related difficulties in his
interactions with others because of his PTSD symptoms.
Mental status examination revealed no evidence of suicidal or
homicidal ideation. Insight and judgment were adequate, and
higher cognitive functions were intact. The examiner listed
a diagnosis of PTSD, and assigned a GAF score of 50.
In his February 2002 hearing before the undersigned Veterans
Law Judge, the veteran reported progressive difficulty
getting along with people, including his wife. He reported
that he still avoided going to public places. He stated that
he continued to take medication for his PTSD, without
apparent beneficial results.
VA mental health outpatient notes from January 2003 reflect
reports of poor sleep, anxiety, and irritability, with a GAF
score of 40. In April 2003, the veteran reported having
nightmares two or three times per week.
A February 2004 VA mental health progress note recorded
complaints of hypervigilence, irritability, low frustration
tolerance, sleep problems, and distressing dreams. Mental
status examination revealed the veteran to be well groomed,
and cooperative. His thoughts were logical and goal
directed. There was no evidence of suicidal or homicidal
ideation. His affect was sometimes tense when discussing
family problems. The examiner assigned a GAF score of 45,
which was an improvement from the GAF score assigned in
January 2004.
On VA examination in April 2004, the veteran reported having
felt irritable and on edge since service. He reported a
history of problems in his three marriages, including
incidents of violence toward his wives. He related that he
had treated his children harshly and rigidly while he was
raising them, and that they had left home as soon as
possible. He stated that he had frequent nightmares and
occasional flashbacks about his experiences in Vietnam, and
that he could not stand crowds. He indicated that he drank
about four alcoholic drinks per week. He reported that he
was withdrawn, isolative, irritable, hypervigilant, and that
he spent most of his time alone at home. He stated that his
family relationships had suffered tremendously as a result of
his PTSD-related behavior. Mental status examination
revealed somewhat pressured speech. His mood was OK, and
affect constricted. Insight and judgment were fair. There
were no signs of suicidal or homicidal ideation, no flight of
ideas, his thought processes were logical and goal directed,
and there was no looseness of association. The diagnoses
were PTSD and alcohol dependence, with a GAF score of 48.
Treatment records and hearing testimony provide the veteran's
accounts of the manifestations of PTSD in his daily life.
The evidence shows chronic impairment of sleep, fairly
frequent nightmares, and flashbacks. The veteran's
discomfort with interaction with others leads him to avoid
most activities outside the home. His past and current
relationships with his wives and children have been notably
limited and damaged by his withdrawal and volatility. It is
difficult to consider the effects of his PTSD on employment,
because he left work due to a nonservice connected physical
disability. He has indicated that he had trouble getting
along with others when he was employed.
The evidence presents a picture of PTSD manifestations
impairing the veteran's functioning, particularly his ability
to interact with people, much or most of the time. He has
chronic mood disturbance that produces difficulty in
establishing and maintaining effective relationships. In
light of the foregoing, the Board finds that his PTSD
manifestations appear to be most consistent with the criteria
for a 50 percent rating.
Notably, however, while the veteran reports chronic
irritability and incidents of violence, he does not show more
serious manifestations such as panic, periods of violence,
suicidal ideation, or obsessional rituals. The veteran's
relationships are damaged, but his impairment does not make
him altogether unable to establish and maintain effective
relationships. Overall, his symptoms and impairment do not
rise to the level of the criteria for a 70 percent rating.
The evidence shows that the veteran's PTSD manifestations
have been at about the same level, without appreciable
change, over the 2000 to 2004 period covered by records. His
symptoms and impairment due to PTSD, as described in April
2000 and thereafter, have been most consistent with a
50 percent rating. Therefore, the Board grants an increase
to a 50 percent rating effective from May 31, 2000. The
preponderance of the evidence regarding the rating period
does not show manifestations that meet the criteria for a 70
percent rating. Therefore, no increase above 50 percent is
warranted.
In order to accord justice in an exceptional case, where the
standards of the rating schedule are found to be inadequate
to evaluate a disability, the RO is authorized to refer the
case to the VA Chief Benefits Director or the Director of the
VA Compensation and Pension Service for assignment of an
extraschedular evaluation commensurate with the average
earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2004).
The governing criteria for such an award is a finding that
the case presents such an exceptional or unusual disability
picture, with such related factors as marked interference
with employment or frequent periods of hospitalization, as to
render impractical the application of the regular schedular
standards.
The Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance; however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Director of
VA's Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,
227 (1995).
The Board has reviewed the record with these mandates in
mind. Significantly, however, the veteran has not required
post-service hospitalizations for his PTSD. He is unemployed
due to non-service-connected disability, but it has not been
shown that his impairment due to PTSD would interfere with
employment markedly, or to a degree beyond that contemplated
by a 50 percent rating. This case does not have exceptional
factors that make it impractical to apply the regular rating
schedule criteria. Therefore, there is no basis to refer the
case to the appropriate official for consideration of an
extraschedular rating.
ORDER
Entitlement to a 50 percent evaluation for PTSD, but not
higher, since May 31, 2000, is granted subject to the laws
and regulations governing the award of monetary benefits.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs